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UpdatesApr 15, 2015

How to avoid being liable for negligence

Today’s bulletin examines an employer’s duty of care under common law principles…

Until next time…

By Charles Power

[Ed note: In Monday’s bulletin, Charles Power discussed the recent decision of the NSW District Court in Trolan v WD Gelle Insurance and Finance Brokers (2014). This case concerned an employees’ claim in negligence for psychological injury, caused by a director’s sexual harassment, intimidation and bullying.

You may recall that the Court found that the employer was both:

Monday’s bulletin focused on how an employer can be vicariously liable for an employee’s actions. Today’s bulletin examines an employer’s duty of care under common law principles…

Until next time…]

Trolan Part 2: Understanding liability for negligence

What is common law?

As you probably know, common law refers to the principles and precedents laid down by courts through decided cases. This is different to the role courts play in interpreting and applying:

When does your common law duty of care arise?

The common law recognises that you, as an employer, owe a non-delegable duty to your employees to take reasonable care to avoid exposing them to an unnecessary risk of injury in the workplace.

Your common law duty of care arises when you can reasonably foresee the risk of injury to an employee.

When will you be negligent?

If you fail to take reasonable care to avoid injury being caused to a person you owe this duty of care to, you will be negligent.

This means that once you become aware of any bullying, intimidation or sexual harassment in your workplace, you are required to stop the employee from being exposed to this conduct.

In Trolan, the Court found that the employer’s duty was activated when:

How could negligence have been avoided?

A reasonable employer aware of the circumstances in the Trolan case would have taken steps to protect the employee. The employee’s psychological illness – and the employer’s liability for negligence –  could have been avoided by:

Regards,

Charles Power
Editor-in-Chief

Employment Law Practical Handbook

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